17 Colo. App. 253 | Colo. Ct. App. | 1902
On February 6, 1894, Simon Blitz made his promissory note to Amedee D. Moran for $3,000, due in five years, with interest at 8 per cent, per annum, payable semi-annually; and, to secure the payment of the note and interest, executed to Charles Hallowell a deed of trust conveying to him, as trustee, certain real estate which it described. The deed of trust empowered the trustee, in case of default by the maker in the paj^ment of the note, or interest, to sell the property in the manner prescribed in the instrument, and execute a deed to the purchaser, and, after payment of the expenses of the sale, to apply the proceeds upon the note and interest. The trust deed also provided that in case of default in the payment of any installment of interest, the whole sum secured, and all accrued interest, should, at the option of the legal holder, become at once due and payable.
Afterwards, on the 14th day of December, 1896, Simon S. Blitz executed another deed of trust to Bernard Beer, as trustee, to secure the .payment of a promissory note for $4,444, made by him and payable to Louis Blitz on demand, with interest at 8 per cent, per annum.
Default was made by Simon S. Blitz in the payment of the interest due Moran on the 6th day of February, 1898, and the latter elected to declare the
The defendants, Beer and Louis Blitz, answered. Beer was merely the trustee, and therefore without interest, and we do not deem further notice of his answer necessary. The answer of Louis Blitz, after denying some of the facts averred in the complaint, admitted the execution of both deeds of trust, and prayed that, in virtue of his right of redemption, he be adjudged entitled to such surplus of the proceeds of the sale as might remain after payment of the amount due the plaintiff.
The hearing resulted in a decree, out of which arises the only important question in the case. The decree, after finding the facts and pronouncing judgment in favor of the plaintiff, provided for the foreclosure of the trust deed executed to Hallowell for the benefit of the plaintiff, and ordered that unless Simon S. Blitz should, within fifteen days, pay the amount of the judgment and costs, the property conveyed by the deed should be sold and the proceeds applied to the payment of the costs of the suit, the costs and expenses of the sale and the satisfaction of the judgment, the surplus to be deposited in court; and William Ferris, Jr., was' appointed a commissioner to make the sale and carry the provisions of the decree into effect.
A number of exceptions were taken to the decree in which we are unable to discover any merit, and which, therefore, we dismiss from consideration. But specific objection was made to the order appointing
Prior to the adoption of the Code of Civil Procedure, in 1877, the ancient distinctions between law and equity, both as to jurisdiction and practice, were carefully preserved. On October 24, 1861, an act of the territorial legislature was approved entitled “An act Concerning Practice in Chancery,” the first section of which reads as follows:
‘ ‘ The several district courts of this territory, in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode hereinafter prescribed; and where no provision is made by this chapter, according to the general usage and practice of courts of equity' or agreeably to such rules as may be established by the said courts in that behalf.” — Territorial Laws 1861, p. 181.
This act is designated as chapter 13 of the Revised Statutes of 1868, and it remained the law until, the adoption of the code. By section 48 of the act the several district courts of the territory were empowered to appoint in each county, one, or, in their discretion, two, masters in chancery, whose powers and duties were enumerated in section 50. Section 46 of the same act provided that when there should be no master in chancery, or commissioner to execute a decree, the same might be carried into effect by execution or final process, according to the nature of the case, directed to the sheriff or other officer of the proper county. By section 43 commissioners were appointed by the court for the purpose of carrying into effect decrees directing the execution of deeds or other writings. Masters in chancery were, by section
Under the old system a master in chancery was an officer of the court of chancery, and acted as an assistant to the chancellor. 'Among his duties were the performance of special ministerial acts directed by the court, such as making sales of property in pursuance of decree. His functions as an officer of the court of chancery were analogous to those of the sheriff as an officer of the law; the latter executing the process of the law and the former the orders of the court of which he was an officer.—McLain v. The People, 85 Ill. 205; Ryan & Nevins v. Dox, 25 Barb. 440; Morton v. Sloan, 11 Hump. 278; Williamson v. Berry, 8 How. 495.
The adoption of the code worked a radical and entire change in our judicial system. Courts of chancery and courts of law, as they were previously constituted, ceased to exist. In Blatchley v. Coles, 6 Colo. 82, Mr. Justice Elbert said: ‘‘The code abolished all distinctions between legal and equitable actions and substituted therefor one action by complaint. For our common-law practice and our chancery practice it substituted a code procedure.” With the passing of the court of chancery passed also the office of master in chancery; and'sales of property under decree must now be made by some other officer. The following is section 8 of article 5 of an act entitled “An Act Relating to Counties and County Officers,” approved November 6, 1861:
‘ ‘ The sheriff, in person or by his under-sheriff or deputy, shall serve and execute, according to law, all processes, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county.” The foregoing provision has never been*258 changed and is still the law in this state. — 1 Mills’ Ann. Stats., sec. 855.
The abolition of the court of chancery carried with it the special offices peculiar to that court, and left the sheriff as the only officer to whom the processes, writs and orders of courts may be directed. But even while the court of chancery was in existence its orders for the sale of real estate might be directed to the sheriff. As we have seen, by the terms of section 46 of the chancery act, decrees of the court of chancery might, in the absence of a master or commissioner, be carried into effect by final process directed to the sheriff. In executing decrees for the sale of property, the sheriff performed the duties of the master. But the office of master in chancery no longer exists, and the only officer now authorized by the statute to execute processes, writs, precepts and orders is the sheriff; or, in certain contingencies, the coroner acting as sheriff.
In this connection some objections are suggested, which may properly be noticed now.
1. It is said that the sheriff has no authority outside of his county; therefore, when a foreclosure embraces land lying in two counties, if the sale can be made only by the sheriff, an order of sale must issue to the sheriff of each county,, thus necessitating two sales. This difficulty does not seem to have occurred to the law-makers of 1861, for they gave the sheriff equal power with a master in chancery in executing decrees of sale rendered by courts in counties where there was no master. By virtue of section 46 of the chancery act, whatever a master might do, the sheriff might do, and if the master could sell land in different counties, so could the sheriff. And under the present practice, the suggested difficulty has no existence. As we have seen, it is the duty of the sheriff to execute all orders issued or made by lawful authority, and to him
2. In the chapter concerning judgments and executions it is provided that land sold under foreclosure decree may be redeemed in the manner prescribed for the redemption of lands sold by virtue of executions issued upon judgments at law; and that in case of such redemption, it shall be the duty of “the purchaser, sheriff, master in chancery, or other officer or person” from whom redemption takes place to ■execute an instrument in writing evidencing the redemption, etc. — Mills’ Ann. Stats., secs. 2556, 2557. To redeem from a sale made by virtue of an execution issued on a judgment at law the redemption money must be paid to “the purchaser, sheriff or other officer,” who sold the land. — 2 Mills’ Ann. Stats., sec. 2547. The suggestion is that the authority of a master in chancery, or person other than an officer, to sell land under a decree of foreclosure, is recognized in the foregoing sections 2556 and 2557. But those sections were enacted when the court of chancery was in existence; they had in view the inherent powers of that court, and its ancient usages and practice; but in so far as they were intended to be applicable peculiarly to the old proceedings in chancery, they are now obsolete. They have never been repealed, and except as they constitute part of a system which has
3. Section 11 of article 6 of our constitution provides as follows: ‘ ‘ The district courts shall have original jurisdiction of all cases, both at law and in equity.” The foregoing provision is made the subject of an elaborate argument. It is said that by conferring jurisdiction in all cases in equity upon the district courts, the constitution invested those courts with all the powers inherent in, and incident to, courts of equity, among which is the power to appoint officers to carry out their decrees; and that the legislature is without authority to adopt a code of practice which would divest them of any of their inherent powers.. We are not sure that we understand exactly what counsel mean; but we assume that they intend to say that by virtue of the foregoing constitutional provision, all the powers which the court of chancery gathered to, and consolidated in, itself, during the long period of evolution of English jurisprudence, inhere in our district courts. We think such
Thus far we have confined ourselves to an inquiry into the effect of the displacement of the old judicial system by the new, upon the.question under
"In actions for the foreclosure of mortgages, the court shall have the power, by its judgment, to direct the sale of the encumbered property, or as much as may be necessary, and the application of the proceeds of the sale to the payment of the costs of the court and expenses of the sale, and the amount due to the plaintiff; and if it appears from the sheriff’s return that the proceeds are insufficient and a balance still remains due, judgment shall be docketed for such balance against the defendant, or defendants, personally liable for the debt, and shall then become a lien on the real estate of such judgment debtor, as in other cases in which execution may be issued.”
It is true, as suggested, that the chapter concerning foreclosure nowhere specially provides that sales under decrees of foreclosure, shall be made by the sheriff. But, as we have seen, at the time of the adoption of the code, it was, by general statute, the duty of the sheriff to serve and execute all processes, precepts, writs and orders, issued by lawful authority, and directed to him; and a repetition in the code of the provisions of the general statute, would have added nothing to the authority which the sheriff already possessed. The code provision we have quoted assumes a sale by the sheriff. That there can be no return of the sale but his, is taken for granted; and unless he makes the sale, he cannot make the return. Nowhere in the code is a court authorized to appoint a master in chancery, or a person by any other name, to execute orders of sale issued upon decrees of foreclosure; and that the legislature understood and intended that such orders
Section 252 of the present code corresponds to section 227 of the original code of 1877, which commenced as follows: “There shall be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action shall be in accordance with the provisions of this chapter.” The remainder of that section is the present section 252. In 1879 section 229 was repealed and re-enacted, omitting the preface we have quoted. Counsel seem to attach some special significance to the fact that the preface was not re-enacted. They do not give us their opinion of the effect which that preface was intended to have upon the remainder of the chapter; but we infer that they regard it as having been a mandatory requirement that all sales under decrees of foreclosure should be made by the sheriff, for they say: “There can be no doubt but that such mandatory provisions were thus expressly repealed owing to the inconvenience resulting, or which it was reasonably anticipated would result therefrom.- In other words, the plain and obvious intent of the legislature in 1879, in striking out the mandatory provisions of section 229, was to enable parties, if they so desired, to pursue the former practice in foreclosure cases, that is to say, to allow them, if they so desired, to have a special master or commissioner appointed to make the sale, to have the sale reported to the court, and to obtain a confirmation of the same.” Proceeding further, counsel say that the language concerning the sheriff’s return relates entirely to a deficiency judgment; and that it was intended only to enable the same court, in the .same action, to decree the foreclosure of the mortgage and enter a judgment for the deficiency. It appears from the foregoing, that conn
Counsel’s opinion of the effect of what they term the “mandatory provision,” and of the intention of the legislature in its abrogation, is widely at variance with our own. The provision was that there should be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage, which action should be in accordance with the chapter of which the provision was a part. Section 229 of the code of 1877 was borrowed in its entirety from the California code; it is an exact copy of section 246 of the original California Practice Act — section 726, Harston’s Practice; and, speaking with reference to the provision in question, the supreme court of that state, in Cormerais v. Genella, 22 Calif. 116, said that it related entirely to the action, and not to the form of judgment which, the court might render in the action. There is nothing in its language to warrant a supposition that it was intended to have any reference to the contents of the decree, or the sale of the land. But we think it was an unnecessary provision, and that the force and effect of the section are precisely the same without it as with it. The following is the first section of the code:
‘ ‘ The distinction between actions at law and suits in equity, and the distinct forms of actions and suits heretofore existing are abolished, and there shall be in this state but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be the same at law and in equity, and which shall be denominated a civil action, and which shall be prosecuted and defended as prescribed in this act.”
The rule which obtains since the adoption of the code, in relation to causes of equitable cognizance, is thus stated by Mr. Justice Elbert in Blatchley v. Coles, 6 Colo. 82:
“Undoubtedly the rules and principles of equity jurisprudence still obtain and apply in the adjudication of causes in their nature equitable, but equity practice, eo nomine, no longer exists, and can no longer be appealed to, except, perhaps, in matters upon which the code is silent.”
In relation to the proceedings which follow a de
‘ ‘ The foreclosure and sale must be a foreclosure and sale provided for in section 234 of the code.” The section referred to was section 234 of the code of 1883, and is section 252 of the present code. The decision in that case was rendered long after the repeal of what counsel term the “mandatory provision” of section 229 of the code of 1877, and yet the court says, not that plaintiff may have a decree and sale in accordance with the practice in chancery if he so desires, but that the foreclosure must be the foreclosure and sale provided for by the code.
We are cited to Denver B. & M. Co. v. McAllister, 6 Colo. 261, as authority for the contention that the court may appoint a trustee, or a special master in chancery, to make sale under the decree. In that case a judicial foreclosure was sought of a trust deed, the plaintiff treating it as a mortgage. There was a decree of foreclosure. The only question in the case related to the mortgagor’s statutory right to redeem, which had been denied by the lower court. The supreme court held that it was within the power of the court, under a proper bill, to order a sale of the property in accordance with the terms of the trust deed, either by the trustee named in the deed, or by another appointed by the court, from which sale there was, by virtue of the statute, no redemption; or, treating the trust deed as a mortgage, to decree a foreclosure subject to the statutory right of redemption. It was only where the remedy provided by the trust deed was proposed to be enforced, that is, where specific performance of the provisions of the trust deed was the object of the suit, that the court held that a trustee
“The complainant having waived his right of sale under the terms and conditions of the trust deed, under which no equity of redemption would have attached, and having, by the prayer of his bill, asked that the instrument be treated and foreclosed as a mortgage, and that the usual decree be made for the sale of said mortgaged premises, the decree should have been the usual statutory decree, giving a right of redemption.”
The decree was reversed with direction to the court below to enter a decree “for the sale of the property in accordance with the usual statutory mode for the sale of mortgaged premises under decrees of foreclosure.” It will be observed that the direction was to enter a decree, not in accordance with chancery practice, but in accordance with the statute. It appears from the opinion that by the decree from which the appeal was taken, a special master in chancery was appointed to make the sale, and no comment upon the appointment was made in the opinion. But there was no objection to the appointment. Its validity or regularity was not in question, and there was no reason why it should be noticed. We do not think the case an authority for counsel’s contention.
Before proceeding to the discussion of another question raised by counsel, we shall notice an additional authority relied on in behalf of the appellee. The following was the case of R. R. Co. v. Sibert, 97 Ala. 393, as it is outlined in the opinion: The Rome and Decatur Railroad Company was incorporated both in Georgia and Alabama. The purpose was to construct and operate a railroad from Rome in Georgia to Decatur in Alabama. The corporation issued its bonds and secured them by mortgage. A bill was
What there is in the foregoing opinion to lend countenance to tfie appellee’s contention, we confess ourselves unable to see. All parties to tfie proceeding acquiesced in tfie decree, the sale, and tfie confirmation of tfie sale. No objection to what was done was made by any person interested. Tfie only complaint came from a stranger, after tfie sale had been confirmed, who claimed that fie had, by virtue of fiis office, tfie legal right to make tfie sale, and was entitled to tfie commissions allowed for tfie sale, notwithstanding it was made by another. He offered no objection to any of tfie proceedings which culminated in tfie confirmation of tfie sale. The court, in its opinion, after giving a history of tfie proceeding, commencing with tfie appointment of tfie receiver, and noticing tfie cross-bill for foreclosure, tfie decree, • tfie sale and tfie confirmation of tfie same, said: “No question is raised in tfie present appeal on any of tfie matters noted above. ’ ’ Incidentally, although no person was questioning it, the court declared tfie sale legally valid; but it denied the register’s claim simply and only because he had done nothing to earn fiis commission; and it declined to decide that fie might not have compelled fiis appointment to make the sale if fie had moved at tfie proper time. Tfie only question before tfie court was, whether, without actually.
But it is said that an authoritive decision that sales under decrees of foreclosure can be made only by the sheriff, will be disastrous in its effect, in that it will disrupt and destroy a large number of titles acquired through foreclosure sales made, in accordance with decree, by persons other than the sheriff, specially appointed for the purpose. The theory is that if the law requires such sales to be made by the sheriff, the appointment by the court of a special master or commissioner to make them, is absolutely void, and that therefore his acts under the appointment are nugatory. If it were true that under a practice long continued and unquestioned, titles have vested, which a decision at this late day against the practice would nullify, the situation would demand the most earnest attention and consideration. But we think that counsel’s apprehensions as to the effect of a decision that the sheriff is the proper officer to execute a decree of foreclosure, are groundless. Let us see whether there is any cause for alarm.
Where a court has jurisdiction of the parties and of the subject-matter of the suit, its judgment or decree, within the case made by the pleadings, is valid. It may be erroneous, but it is not void. It cannot be attacked collaterally, and it can be 'attacked directly only in the manner and within the time prescribed by law for obtaining its review by the proper tribunal constituted for the correction of errors. If the party against whom the judgment or decree is taken, suffers the appointed time to elapse without moving towards securing its reversal, he is bound by it no matter how erroneous it may be, and he is powerless to resist its enforcement. In actions for
“It is urged, that by law the courts are, in case of a sale being ordered, directed to require that the sale be made by the sheriff, and that, in this case, they appointed another person to make it. But this error could not have the consequence of taking away their jurisdiction, nor of rendering the sale void. They were authorized to direct a sale by one person, and they directed a sale by another. There is no just analogy between such a case, and one where the court adjudged that to be done, which the nature of the*272 action does not warrant, as adjudging that a defendant make a conveyance for land, or receive a beating-in a personal action.”
Before leaving this case we think it worth while to observe that it appears from the statement preceding the opinion that after the sale and conveyance, the proceeding’s in partition were taken up by writ of error, and the order directing the sale reversed; and that thereupon the defendants abandoned the possession.
Titles acquired through judgments merely erroneous, in which the parties have acquiesced, are valid. A deed made by a commissioner, erroneously appointed by the court in a foreclosure proceeding to make sale of the property, no steps having- been taken to secure a reversal of the decree, conveys the title of the party against whom the decree was rendered, and that title is unaffected by the error in the decree.
In this case the court hád complete jurisdiction, and the only error consists in the appointment of a commisisoner to execute the decree. All else is regular. The decree will therefore be reversed only as to such appointment, and the cause will be remanded to the district court with instruction to modify the decree by directing the duties which it devolves upon the commissioner to be performed by the sheriff.
Reversed.
